GILLESPIE v. GILLESPIE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The wife appeals from a judgment of divorce nisi dated January 4, 2019. The wife claims the judge abused her discretion in declining to order the husband to pay general term alimony and in leaving the wife fully responsible for student loans taken out for or by the parties' children. We vacate so much of the judgment as pertains to alimony and the student loans, and remand for further proceedings. We affirm the remainder of the judgment.

1. Alimony award. The judge ordered that no alimony be paid by either party presently and that the husband maintain his present health insurance for the wife until she is no longer eligible for coverage.² The wife claims the judge abused her discretion in determining that the wife and her boyfriend constituted a common household under G. L. c. 208, § 49, such that the judge may not award alimony. We disagree.

Pursuant to the alimony reform act, “[g]eneral term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household ․ for a continuous period of at least 3 months.” G. L. c. 208, § 49 (d). A “common household” is defined as persons who “share a primary residence together,” G. L. c. 208, § 49 (d) (1); the court may also consider other factors such as the economic interdependence of the persons or the dependence of one on the other, whether the persons engage in conduct and collaborative roles in furtherance of their life together, and the benefit the persons derive from each other. G. L. c. 208, § 49 (d) (1) (ii)-(iv). The Supreme Judicial Court has stated in dicta that a common household requires “an economic marital partnership,” the existence of which in turn depends in part on “economic interdependence of the couple or economic dependence of [one] person on the other” (quotation omitted). Duff-Kareores v. Kareores, 474 Mass. 528, 535 (2016). A judge's discretionary decision constitutes an abuse of discretion only when the judge “made a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge's decision could be read as concluding that, but for the wife's cohabitation with and economic dependence on her boyfriend,³ a general term alimony order that addressed the wife's needs and the husband's ability to pay could well have entered. The judge's decision sets forth the wife's income, including temporary alimony, and her expenses, which indicate a weekly shortfall. Notably, the parties were able to pay off their credit card debt. The judge's rationale reflects that she paid close attention to the evidence in determining the wife was entitled to more than fifty percent of the marital estate because of the husband's superior earning capacity, his ability to contribute to his retirement assets, and the wife's current medical issues. The judge's rationale recognizes that a general term alimony order might be warranted based on the length of the parties' marriage but, in light of the wife's relationship with her boyfriend, would not be entered “at this time.”

This could be read as effectively making a general term alimony award and then suspending it, as authorized by G. L. c. 208, § 49 (d). What is unclear, however, is what the amount and term of the alimony award being suspended was,⁴ and whether the award to the wife of more than 50 percent of the marital estate reflected a recognition that no alimony would be paid at this time. See G. L. c. 208, § 34 (division of marital estate shall take into account “the amount and duration of alimony, if any, awarded”). Also unclear is whether the judge considered, as an alternative to suspending the award, merely reducing it -- as § 49 (d) also authorizes -- based on what at least some evidence suggested was the limited extent of the wife's financial dependence on her boyfriend.⁵ On remand, this discretionary alternative should also be considered. See Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748–749 (2003). See also Carter v. Lynn Hous. Auth., 450 Mass. 626, 635 (2008) (“Failure to exercise discretion is itself an abuse of discretion” [quotation omitted] ). A remand is necessary to determine the range and term of the alimony that would be paid but for the wife's sharing a common household with her boyfriend, and to consider whether alimony should be reduced, rather than suspended, while the common household exists.

2. Student loans. The wife also argues that, to the extent she is liable for repayment of the student loans of two of the parties' children, it was an abuse of discretion not to make an equitable allocation of a portion of that liability to the husband. The wife's testimony was, as her brief acknowledges, unclear as to whether she is the cosigner or the primary borrower on the loans at issue. Also unclear is the extent to which the paternal grandmother cosigned the children's student loans, and how the amount of her potential liability compares with that of the wife.⁶ The judge's decision not to allocate any of the wife's potential liability to the husband was based on the wife's testimony that she is currently making no student loan payments and that one (although not both) of the children intended to repay his loans himself. The judge also noted the paternal grandmother's potential liability. As the matter must be remanded in any event, and because a further order as to alimony might cause the judge to reconsider the division of the parties' liabilities as well as their assets, the student loan issue should also be addressed.⁷

Conclusion. On remand the judge is instructed to make further findings on and reconsider (1) the range and term of alimony, taking into account the extent of the wife's financial dependence on the boyfriend and whether reduction rather than suspension of the alimony award is warranted, and (2) the equitable allocation of the wife's potential liability for the children's student loans. In the judge's discretion, the judge may take additional evidence. So much of the judgment nisi as pertains to alimony and to allocation of the student loan liabilities is vacated, and the case is remanded for further proceedings consistent with this memorandum and order. In all other respects, the judgment nisi is affirmed.

So ordered.

affirmed in part; vacated in part and remanded.

FOOTNOTES

2.   The wife argues that any alimony order should also have required the husband to provide her with health insurance. By statute, an alimony award must make provision for health insurance only where the payor spouse “has health insurance or other health coverage available to him ․ that may be extended to cover the spouse for whom support is ordered” (emphasis added). G. L. c. 208, § 34. Here, the wife conceded at trial, and the judge found, that the husband had health insurance through his employer, a self-insurer, and that the employer's plan did not extend to employees' divorced spouses once a divorce judgment became final. On these facts, the statute did not require that any alimony award include an order regarding health insurance.

3.   Although the wife challenges the finding of economic dependence, we cannot say that it was clearly erroneous. The wife testified that the least expensive apartment she could find was priced at $1,200 per month, yet she paid only $800 per month as rent to her boyfriend, as well as an average of $30 per week for heat.

4.   Determination of the amount and term of the award is significant, because “[a]n alimony obligation suspended, reduced or terminated under this subsection may be reinstated upon termination of the recipient's common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order.” G. L. c. 208, § 49 (d) (2).

5.   The wife testified that she did not do any of the following for her boyfriend: cook, do laundry, buy groceries, pay bills, or accept money. She added that she did not have an ownership interest in his property, use his credit cards, borrow money from him, or have a joint account with him, and that they each paid their own expenses.

6.   The only evidence on this point was the wife's statement in response to being asked whether it was true that the paternal grandmother “took out signed loans for the kids as well.” The wife answered, “I did hear that, yes.”

7.   To the extent we do not discuss the wife's other arguments, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).